Abdicating the Rule of Law

The Attorney General of the United States has again abdicated his duties; he has notified Congress that he will not defend a duly enacted law in the courts. He did this in February of last year, too, when he stepped back from upholding the federal Defense of Marriage Act. This time, he refuses to defend a military and veterans’ benefits law, 31 U.S.C. §§ 101(3) & (31), that defines “surviving spouse” and “spouse” to refer to persons of the opposite sex.

The Attorney General is not doing this on his own; he specifically says the notification reflects the policy of the President.

I wrote last year that this policy is a mixed blessing, in that by abdicating his responsibilities, Mr Holder may open the door to a more vigorous and more effective defense of the laws in the courts. The same holds true this year. But I am concerned with a more fundamental problem, and that is how this Administration and like-minded state officials flout the legislatures in our country.

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In recent years, chief executives of the states and the federal government appear to have abandoned the very concept of representative governance by their legislatures in favor of rule by decree. They have adopted an attitude that if they are right in their policies—and they always believe that they are–then they will forge ahead with them no matter if they receive the authorization of the legislature or not. They will even forge ahead if instructed otherwise by their legislatures.

This concern goes beyond the problem of delegation-of-legislative-power-run-wild that was described on MercatorNet recently by Angelo M. Codevilla. Here are a few examples, culled from hundreds that could be cited.

Illinois. In 1997, Illinois enacted the Health Care Right of Conscience Act, providing perhaps the broadest protection of health-care conscience rights of any jurisdiction in the United States. Nevertheless, in 2005, the then-Governor of Illinois ordered his Administration to promulgate a regulation forcing pharmacists to sell contraceptive and abortifacient drugs or face disciplinary proceedings. A member of the Governor’s cabinet wrote a letter to a Chicago newspaper stating, “We are telling pharmacies… they can’t let an individual pharmacist’s personal beliefs delay or hinder a woman’s ability to have her prescription for birth control filled…” After six years of litigating against the State of Illinois, pharmacists finally won a permanent injunction in the trial court. Incredibly, the Attorney General of Illinois has appealed.

Missouri. In Missouri, a 2011 statute on funding certain bio-science research and start-ups, which Missouri Right to Life pointed out could allow funding of embryonic stem-cell research, was enacted with a clause that it would not go into effect unless another specific bill was enacted during the same session. The other bill was not enacted. Nevertheless, the Governor of Missouri announced that he would implement the bio-science funding program anyway, despite the clear language of the statute that it was not to go into effect. A judge recently issued a permanent injunction against the Governor. Incredibly, the Attorney General of Missouri has announced he will appeal.

Obama Administration. On December 19, 2011, the President of the United States issued an Executive Order instituting a “National Action Plan on Women, Peace, and Security.” This Plan describes how the United States will put more women into diplomatic and other official efforts to avoid wars, to bring a woman’s point of view to efforts to maintain peace, and to ensure women are not forgotten in ameliorating the suffering and damage caused by armed conflicts. Of course, “reproductive health,” which for this Administration in particular means abortion services, is not forgotten, either. The Plan proudly announces at one point, “We have supported the development of a toolkit on reproductive health in emergencies, and training modules for NGOs on the prevention of sexual exploitation and abuse (SEA) of beneficiaries.” No US law enacted by Congress is cited as authority for this “toolkit” or the Plan as a whole; the Plan is based, it says, on UN Security Council Resolutions beginning in the year 2000.

Obama Administration. In the fall of 2011, the President initiated several Executive Branch initiatives under the rubric, “We Can’t Wait.” Explicitly admitting that Congress refused to enact such programs, the President announced that he and his Administration would initiate them, anyway. Such programs include “energy upgrades” to commercial buildings toward which the sum of $2 billion of taxpayer money is committed, a commitment of another $1 billion of the public’s money toward the financing of start-up companies, and expanded federal spending in rural areas, particularly expanding the “rural health information technology workforce.” It seems not to bother the President that the people’s representatives have not approved spending the people’s money for these initiatives and that the federal government is currently gushing out torrents of borrowed money that it does not have any idea how to repay.

These examples illustrate how the governors and the President are flouting the will of their legislatures, whether the legislative intent is expressed in enacting bills or in refusing to enact bills. The President’s Attorney-General refuses to defend laws that Congress enacted, and the President initiates programs that Congress refuses to enact. Governors issue Executive Orders that contradict the terms of statutes of their state legislatures.

I learned in school that the executive branch of government can propose new programs, but it is for the legislative branch to enact them, and then the executive enforces the laws enacted by the legislature. As an adult, my examination of the Constitution of my home state, Missouri, and the Constitution of the United States reinforces what I learned in school. The last couple of decades indicate that the governors and President are not abiding by this arrangement. Who has authorized them to arrogate legislative powers to themselves?

“A Right formidable to tyrants only”

Perhaps Americans ought to refresh our memories about the principles we have inherited from the Founders of our country. Times have changed since they strove for our independence and freedom, but human nature has not. It is to the Founders’ insights into human nature, and the mechanisms of limited government that they created with human nature in mind, that we owe the freedoms we enjoy more than 200 years later.

It was profitable to begin my own review with American Cicero, Bradley J. Birzer’s 2010 biography of Charles Carroll, signer of the Declaration of Independence. As a Catholic, Carroll was actually disqualified before the Revolution from citizenship in his home province, Maryland. He could not vote or hold public office. Nevertheless, he contributed what he could, beginning with written public newspaper columns against abuses of the provincial governor. What were those abuses? They began with issuance of a gubernatorial decree that imposed public fees after the Maryland Assembly refused to enact them.

Among the principles that Carroll invoked against the governor’s decree was this one: “Fees are taxes [and] taxes cannot be laid out but by the legislature.” Carroll further wrote, “The pursuits of government in the enlargement of its powers, and its encroachments on liberty, are steady, patient, uniform, and gradual.” His campaign against unauthorized executive decrees made Carroll famous throughout the colonies and helped launch the cause of independence in Maryland.

Maryland was not unique. The royal governors’ flouting of the people’s legislatures was prominent among the reasons our colonial ancestors finally rose up against the British. In the Declaration of Independence, the recitation of grievances that justified severance of allegiance to Great Britain included the following:

He [the King] has refused to pass other Laws for the Accommodation of large Districts of People, unless those People would relinquish the Right of Representation in the Legislature, a Right inestimable to them, and formidable to Tyrants only.  *  *  *

He has kept among us, in Times of Peace, Standing Armies, without the consent of our Legislatures.  *  *  *

For suspending our own Legislatures, and declaring themselves invested with Power to legislate for us in all Cases whatsoever.

The current Attorney General’s refusal to uphold the enactments of Congress is bad news for the rule of law in a republic. The expanding practice of governors and presidents to rule by royal decrees that we now call “executive orders,” sometimes even flouting contrary acts of their legislatures, is nothing else than the groundwork for a virtual dictatorship.

Unlike the colonists of 1776, we have elections available to cut this process short. “A Prince,” said our Declaration of Independence, “whose Character is thus marked by every act which may define a Tyrant, is unfit to be the Ruler of a free People.” So is such a state governor, and so is such a President.


  • James S. Cole

    James S. Cole graduated Harvard Law School in 1978 and practices law in St. Louis, Missouri.

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